The dilemma of identity is a foremost alarm for man. Being the same we have
come across with an idea of associating with something greater than us. God is
the one who is above all, superior, divine not a human being. The public having
same idea of God approaching together started following the similar custom and
The freedom of religion does not infer to each individual can ensure whatever he
feels under the veil of the religion. Constitution of India provides
restrictions on the litheness of religion. The purpose behind is not to abuse
the profitability of the rights of the religion.
India is considered as the land of philosophy, devoutness and the origin of
development, was a natal place of different religious conviction. Religion is a
particular system of theories, belief and adoration. The religion is a set of
faith and belief which is held by a group of people.
There is a different religion and apiece individual follows different beliefs
and imposts. In the view of Shafin Jahan v. K.M Ashokan case, where a
Hindu women named Hidaya convert herself to Islam religion, upon this her father
criticized that she had been indoctrinated into embracing Islam and alsoa
victim of a movement to convert Hindu women to another religion and fear to
transfer them to other country.
It was consenting marriage between two and her conversion to Islamwas of her own
choice and will. Taking into the account, we can conclude that the subject
matter here is not one religion at all. But it is one of the women's freedom of
choice and religion, human rights and also to protect personal freedom.
Freedom of choice is an idea that is absolutely central to major a better life
which is not a new one. The significance of the quality of life of the people of
society in considering the accomplishment of religious rules, it is quite easy
to perceive the consequence of freedom of choice to religious appraisal and
valuation. Freedom of choice and religion is a modern idea and a formal concept.
Freedoms to protect the right of the people and aid them to take choices
pretense serious problems applied to persons of lessened ability. There is
hierarchy of means where we can characteristic freedoms to such people.
'Laissez- faire' is basically an idea where the law should not intervene in the
affairs of individuals.
Freedom provides protection to choose that make their importance debatable.
Freedom may have different values for different individuals, whereas the values
of other kinds of rights seem to remain constant for all applicants. Freedom of
speech protects both the choice to speak and choice to be silent.
The state can forbid open exercise of religion rather than commanding piety.
Right to Freedom of choice which have alternative decisions and situations,
generally, without considering the precise preferences of the decision makers.
The power of making decisions to get rid of preference difficulties to link
freedom of choice with power and from this we will arrive at responsibilities.
The guarantee of freedom values as a way of self expressions, self realizations
and self accomplishment. The constitution guarantees the free exercise of
religion. Strictly balanced choice is not the legacy of religious faith.
Facts Of The Case
With accordance to the case of Shafin Jahan v. K.M Ashokan, where the
Hindu woman named Akhila Ashokan who embraced herself to 'Islamic' religion of
her own choice and will and got married to Shafin Jahan at the age twenty five
years and changed her name as 'Hadiya Jahan'. Her father K.M Ashokan filed a
writ petition in High Court of Kerala. He alleged that Hadiya has been deceived
and forced to turn into a Muslim.
Her father also alleged that Shafin Jahan had linked to extremist Muslim
organizations to be used as a sex slave or a human bomb and apprehended that
Hadiya would apt to be moved out of the India.
All through the High Court Hadiya perpetuated that her marriage and her
conversion to Islam was of her own choice. An Affidavit was filed by his
daughter expressively pronouncing her marriage with Shafin Jahan and her
conversion to Islam. She asserted in front of the High Court that her conversion
to Islam was her faith of choice.
The impugned decision of the High Court an order to annulling the
nuptialconsidering it as 'sham' providing that the nuptial is of no importance
in the code of law. The grounds behind the High Court judgement, in view of the
fact that marriage is one of the most essential decisions in life, can also be
taken only with the active involvement of her parents. To give her in marriage
and to act as a guardian is not the right of her husband.
The High Court exercising Parens Patriae jurisdiction observed the
responsibility is caste on it to make sure the security of the girls who are
brought it. The responsibility can merely be exercise by certifying that parents
must be given the custody of Ms. Akhila. The authority to affirm the marriage
null and void, to entertain the Habeas Corpus petition, is manifestly in excess
The Supreme Court in the view of the Parens Patriae hegemony of the High Court
to annulling the marriage in exercise of is held beyond jurisdiction. In the
petition of Habeas Corpus of major girl, appears before the court state a fact
that she is not under any illegal restrictions or confinement, the role of the
High Court's ends there. The question relating to whether she is married by
conversion of her own religion or choice, whether the marriage was valid or not
would consider irrelevant to annulment of marriage and consider it as 'sham',
would be an offence of habeas corpus jurisdiction.
The constitution of India administer 'women's right to marry a person of own
choice' instituted in the inherent part of Article 21. It states that every
individual has a complete freedom to choose life partner of any faith, belief,
religion, caste etc. The state, law not even society can behest choice of
The right to choice cannot withdrawal except by the law which is extensively
fair, just and reasonable. In the present case state intervenes and supported
the cause of Hidaya's father who file petition of Habeas Corpus against the
daughter's choice of marriage with the person of different religion and faith.
The state also supported father attitude patriarchal autocracy which has an
effect on others exercise of freedoms and liberties for fear which may have
affect free exercise of choice.
Article 25 Of Indian Constitution
If we go back in history, between 1930 to 1940, there were many princely states
that had implemented anti-conversion law. According to Indian constitution,
every citizen has a right to profess religion of his or her own choice. But, our
Constitution does not allow forceful conversions. As per the Article 25 and many
judgments by the court, forceful conversions are complete ban in India.
Subsequently, after independence, Indian government provided 'anti-conversion
bill' three times before the Lok Sabha.
These bills were argued in 1954, 1960 and 1979 and it could not be approved due
to the reasons. Orissa, in 1986 passed the law which was shadowed by Madhya
Pradesh. Consider it was confronted before Supreme Court. Ant- conversion laws
have been adopted in several states like Rajasthan, Gujarat, Arunachal Pradesh,
Tamil Nadu, Himachal Pradesh and Jharkhand shadowed the suit. Some of the states
got the bill enacted. The anti-conversion bill is no threat to the minorities,
people should not fear it.
The bill will be discussed in the parliament and if requires the Supreme Court
will take care of every individual of the country. The Constitution of India
provides right of equality, freedom of speech and right of choice which will not
be limited through the bill. The aim of the bill is to restraint forceful
conversion. There are several instances, where known personalities like a singer
changed to other religion but there is no manner and cry. They converted as per
their will and own choice and we respect their choice and decision.
There is a need to know the dimensions of free religion in India. If someone
ask me to elucidate religion in a sentence 'we are a free people with a free
will, and a free conscience, and free intelligence. No one can force anyone to
convert. When the entire world hated Jews, we hailed them with open arms. This
is our culture and it has been this way all these while. The dogma of the
government is to run the country with a moral code of conduct.
Prime Minister Narendra Modi is succeeding the same path. Caste system, which is
fundamental part of Hindu religion, creates so much negativity, externality in
society. It does not allow inter-caste marriage and inter-religious marriage.
Since last six years we have seen, there is a direct attack on our kitchen,
attack on our choices to have food and now there will be an attack on our
choice, on whom to marry.
A marriage can be dissolved at the request of the party in the law court.
Marital status is grant through directive and custom. Law has maintained the
valid conditions for marriage as per the Marriage Acts. It guarantees the
set right when relationship runs assure. The privation of marital status is the
issue of serious consequence. The law may dictate the valid conditions of the
marriage as it may act the situation where a matrimonial tie can be null and
void. To continue the marital status of relationship deciding the best on
whether they should accept each other, there are treatments available to parties
There is no role of society in shaping the choice of partners. Intimate personal
decisions of social approval are not the basis of recognizing the partners. The
own freedom from disapprobation the public is protected by Constitution. We can
choose to live, be a happy person, whatever the circumstances are, the choice is
Law v/s Religion
The thought of all religion is lop-sided in character in India. In our country,
public from every religion has a hitch with person who practices any other
religion.Article 18 of the Universal Declaration of Human Rights states freedom
of religion approved in 1947-48, asserts that each and every individual has
authority to choose the faith or belief that suits his sense of right and wrong.
This particular idea is establish clearly by the Supreme Court in the matter of
The major contention was that can the state agencies prevent with the choice of
the individual to prefer his own faith. The Supreme Court had come down hard on
the manner where the High Court of Kerela treated the matter. A Writ of Habeas
Corpus was turned into a declaration that the marriage with her Muslim husband
The Supreme Court also decisively mentioned that individual has a right to
choose his faith and state has no right to interfere. So the outright
prohibition is totally out of subject. It will be unlawful and against the will
of the civilised idea of the freedom of religion. Kanhaiyalal Munshi and Sardar
Vallabhbhai Patel asked to hold only the affirmative aspect of conversions and
to leave it to the legislatures to decide to make a law to avert forcible
conversions. So, forcible conversions can never be a part of the Fundamental
In the case of Fr.Reverend Stanislaus the Supreme Court held that our
Constitution gives the freedom of sense of right and wrong to profess and
propagate religious conviction. The court had to review legislations conceded by
Orissa and Madhya Pradesh to prevent forceful conversions.
The word Profess and propagate not only means to believe in it, but also to put
that faith into practice. Propagate would essentially mean that one can also
communicate or pass on your thought procedure to others. But the transmission of
the thought cannot be mean in a way as to persuade fear, so that they become
victims of false propaganda and they compensate their original faith.
No Religion Teaches To Bring Another Religion Down
According to the case of Lily Thomas v. Union of India, the Supreme Court
held that the fundamental right of an individual to entertain such religious
beliefs as a person to chooses, the authority to declare his religious
beliefs and ideas shall not contravene the religious right and personal
liberty and freedom of others". The law should not be used in such a manner
that it hasalarmingresult on the free speech and free expression was also upheld
in a previous decision of a Bench of three judges in S Khushboo v Kanniammal.
In Navtej Singh Johar V Union of India, constitution division bench
partly strike behind Section 377 of the Indian Penal Code (IPC), while holding
it is "clearly not only crazed and unclear but also has alarming up shot on an
individual's freedom of choice.The right not to believe is also a
replication of an individual's choice, and provisions such as Section 295A,
which is crazed, have a chilling outcome on this choice.
Article 25 provides each and every individual to exercise freedom of any faith
or belief of his power to choice. Freedom of religion includes freedom from
religion as well. Thus, every person has the autonomy of having have faith in
the religious values of any particular cult or else denomination. There is no
bar in the establishing or making of a group of people with different religious
beliefs within a religious denomination. The Hindu Marriage Act, 1955 gave
adverse definition to the term Hindu by stating that any person who is not a
Muslim, Christian, Jew, Parsi etc. be considered as Hindu.
With the proviso of Ratilal Panachand Gandhi v. State of Bombay, (1954)
the Supreme Court stated that "fundamental right has specified to every
individual to entertain such religious beliefs as a person to chooses may be
accepted by his judgment or freedom of conscience and religious."
Therefore, the Constitution of India as sure liberty of religion and
acknowledge the individual's independence to have a belief system or freedom of
religion of her own choice. If other individual follows a like belief system,
they may proclaim it as a right of a new different religion. State or law must
not interfere with this individual freedom. No fundamental rights are dependent
on the constitutional recognition.
The highest court of India has given legitimacy to those who believe in the "one
nation, one religion" slogan.
Laissez Faire Comparison
Laissez faire is the most protective liberty and dignity for all individual
despite of age or capacity for choice. It says that every individual must
empower all freedoms in equivalentgauge. The term, laissez faire originates from
the place of individual integrityand liberty. Freedom is an end itself is an
inference. It means a person to be able to choose better that what is chosen is
the independent of the wisdom. As the freedom of importance, the laissez faire
situation based on individual integrity need no special regulations for people
who are not able to choose wisely. It presents an inside rational assert on
behalf of equivalent freedom for all but it is both unfair and unreasonable.
The conclusion was that legal incompetent should have individual dignity as
competent adults. In such cases like Cohen v California, Roe v Wade it
was held that freedom of choice is the basic decision of one's life respecting
marriage, divorce, procreation, contraception and the children and the
upbringing of children and Stanley v Georgia states that privilege of
choosing freely is cherished for its influence to individual fruitful happiness.
They have faith in liberty as the covert of contentment and audacity is the
covert of freedom. The line concluded by Deepak Mishra in the Hidaya's case
was that the role of the court is to see the person held in custody is
presented before it. Finding about his/her free choice and the person is free
from illegal confinement.
In the case of Ummu Sabeena v. State of Kerela,
where the song of liberty is sung with honesty and the choice of the individual
appropriately respected and discussed its reverence status as the importance
In the matter of Bellotti v. Baird, in whicha woman denied to abort as choice
may hurt a loss far more significant.
If freedom comprises the forming of balanced choices, its intelligent is
ometricsstress practice. The knowledge is on the main of a manner of modifying
freedom for people whom the validations for individualism do not compass. In
accordance to the influential beginning, the right to live free of choice
perhaps depends upon the ability of choice, but attaining the ability to choose
also depends on the use of one's right and power.
Thus, we can validate the attribution of freedom by not presenting the ability
of choice since the singular change into a developed and healthy person in large
portion on before the gratitude of freedoms.
This Part sustains that, in which
the individual is not too competent or the choices are important to threat
non-interference of an individual. The surrogate approach to lawful freedoms
also aid in evaluating the legal treatment of uncontested custody measures
Right To Protection Of Life And Personal Liberty
As per constitution of India, Article 21 is vital where the country can
successfully inclined in the direction of the specified aim of formation of a
culture based on belief that every person is equal and deserve one and the same
constitutional rights and privileges. People should get the same or be treated
the same or be treated as equals in some respect. The Supreme Court has grant
and define the scope of this right so that it could be empty idealism that has
been converted into a judicially recognized element of the right to personal
The pronouncements of the true to life in personal liberty which have been
classified according to the nature and the level of legal sanction a right is
influenced of. In the case of Unni Krishnan, it was first recognized that
article 21 is a core of Fundamental Rights and it has prolonged the scope of
article 21 by perceiving that life includes right of persons to life with human
dignity and personal liberty includes right to choice to all persons.
Hadiya Is Under Illegal Detention
Hadiya is illegally restrained of her freedom established under Article 21 of
the Indian Constitution. The father of Hadiya didn't let her leave home with
Shafin Jahan, her husband. Constitutional bench of the honorable court opined
that the purpose of writ petition of Habeas Corpus is to provide safety of
release of an individual who is illegally confined of one's liberty.
dealing with writ of Habeas Corpus, the role of the court is to check that the
person is free from unlawful restrained. It is significant to note that Hadiya
is a major and she has expressed her desire to go with Shafin, her husband. The
deprivation of marriage of Hadiya is violation of complete right of an
individual to choose life partner and right to privacy under Article 21 of
No state or any law can order the choice of partners or restrain the freedom of
any person to choose in subject matter of marriage. In the case of K.S
Puttuswamy, the honorable court in division of bench said that the capacity to
make decision related to problemsclose to one's life is an enviablepartof
individual personality. The incident of individual freedom, under Article 16 of
Universal Declaration of Human Rights emphasizes on fundamental significance of
The guarantee of free exercise of religion means that there are no restrictions
on the exercise of free religion in accordance to the order of morality, or on
the expression of free religious ideas, saves people from imposing under the
power of police, against acts inimical to the peace, good order and morals of
In the facts of Lata Singh v State of U.P, where the Supreme Court
provided support of a women's right to choose. The petitioner, Lata Singh when
she left her home to get married a man outside of her religion. Another case of
Gian Devi v. Supritendent Nari Niketan, it was held that there is no
valid ground for the petitioner detention in Nari Niketan against her choice.
Subsequently, the petitioner has stated explicitly that she does not want to
know in Nari Niketan, her detention cannot be held to be in accordance with law.
it directs that petitioner be set at freedom.
There is no particular privation that attaining the age of majority has its own
importance in an individual's personal life. He/she is authorized to make
his/her own choice so long as choice remnant, the courts cannot undertake the
role of super guardian. As the law permits Hadiya is entitled to enjoy her right
of freedom of religion, law must not undertake the part of a Parens Patriae
being carried by the soppiness of the mother or egoism of the father.
The restriction of any state or of the public authority the law cannot be
discriminated among the person in religious matter; and the public authority is
not to make inquiries or take sign of freedom of belief or expression defines as
the resident to perform duty towards the State and to the equals. It was also
held that laws are made for the governmental actions, while they cannot
intervene with basic spiritual belief and opinion, they may with practices.
While sustaining the constitutionality of the law, though it was in conflict
with the religious teachings, a distinction was made between the provinces of
belief from that of action. In Cantwell v Connecticut, it was held that the
Exercise of Free Religion clause holds two main aspects freedom to hold belief
and freedom to ac upon it.
The free exercise of religion has been interpreted to involve three
concepts: (a) Freedom of religious belief; (b) Freedom of practice; (c) Freedom
of propagation of religious views. It thus protects not only religious belief
and speech, but also conduct(though the latter is subject to State regulation,
to be mentioned presently).The acceptance of individual identity is the free
choice in accordance with act. The constitutionality guaranteed freedoms are
above than the social values and morals. The liberty is constitutional as well
as human right. The freedom which is entrenched in choiceof faith is not
Choosing a faith is a substratum of individuality and the right of choice
becomes a shadow. The belief and freedom of choice of an individual are
important for the construction of the right. The woman converted herself to
Islam. She then met a Muslim Man Shafin Jahan and married him at the age of
twenty-five. Right to protection of life and personal liberty is an expression
which includes right to carry on various such functions and behavior sufficient
to give expression to human self.
The right to privacy not only includes protection from unannounced incursion on
one's personal life but also such other things freedom from the choice of
parents in education, the woman's right on what occur to her own body in
conditions of choice in order to have an abortion.
The freedom of speech and expression includes the freedom of child to choose the
means of instructions cannot be excluded for the reason that they have no right
impose rational restrictions on this freedom of child for that purpose than
those specified under Article 19(2) of the Constitution of India. In Doe v.
Bolton case, it is said that the right to privacy means freedom of choice is
the basic decision of one's life respecting marriage, divorce, procreation,